In re Revision of Sentence - Applicant v Republic

High Court of Kenya

13 March 2018

GNG.W. NGENYE-MACHARIA

305 words in judgment

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The bottom line

Large fines trigger strict limits on the prison time imposed for non-payment under Kenyan law.

What this practically means

Executive summary

This was an application for revision of sentence before the High Court. The Applicant had been convicted of theft of a motor vehicle contrary to Section 268 as read with Section 278(A) of the Penal Code, for stealing a Toyota Rav4 (Reg. No. KAX 010T) valued at Kshs. 780,000/=, the property of Julius Mathenge Waweru, on 12th September 2013 at Safari Park View Estate, Kasarani, Nairobi. On 26th January 2018 the trial magistrate sentenced him to pay a fine of Kshs. 200,000/= in default serve two years imprisonment. The Applicant sought a downward revision, also stating he had spent four days in police custody before taking plea. The Respondent, through M/s Akunja, opposed the application, submitting the sentence was sufficient. The Court held that since the trial magistrate opted for a fine, he ought to have been guided by Section 28(2) of the Penal Code, which provides that where the fine exceeds Kshs. 50,000/= the default sentence must not exceed twelve months. The two-year default sentence was therefore illegal. The application succeeded: the sentence was set aside and substituted with a fine of Kshs. 200,000/= in default twelve months imprisonment. Judgment was delivered on 13th March 2018 by G.W. Ngenye-Macharia J, with the Applicant in person and Miss Sigei appearing for the Respondent.

Key legal issues

Legality of the default sentence imposed with a fine exceeding Kshs. 50,000/=

Holding

The default sentence of two years imprisonment was illegal because Section 28(2) of the Penal Code caps the default sentence at twelve months where the fine exceeds Kshs. 50,000/=.

Reasoning

The Applicant was convicted of theft of a motor vehicle under Section 268 as read with Section 278(A) of the Penal Code, which carries a maximum of seven years imprisonment. The trial magistrate opted for a fine of Kshs. 200,000/= with a default sentence of two years. Because the fine exceeded Kshs. 50,000/=, Section 28(2) limited the default sentence to twelve months, rendering the two-year default sentence illegal and requiring revision.

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Legal principles established

Where a fine exceeds Kshs. 50,000/=, the default sentence must not exceed twelve months under Section 28(2) of the Penal Code.

Court orders

1.The sentence imposed on the Applicant is set aside
2.The Applicant shall pay a fine of Kshs. 200,000/= in default serve 12 months imprisonment

On appeal from: Magistrates' Court (trial court)
Jurisdiction invoked: Revisionary jurisdiction over sentences passed by subordinate courts (High Court revisionary power)

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "In re Revision of Sentence - Applicant v Republic", Case Analysis (2018). . Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.